This week, Europe and the US will be negotiating the fifth round of the Transatlantic Trade and Investment Partnership (TTIP). Transparency International (TI) has urged the parties to include a transparency and anticorruption chapter in the TTIP. TI is right about this–the US and European negotiators should include something like TI’s suggested chapter in the revised TTIP.
The text of TI’s proposed TTIP anticorrution chapter is similar to, yet goes beyond, the anticorruption provisions that have been included in other US Free Trade Agreements (FTAs), for example in CAFTA, the US-Korea FTA , the US-Peru FTA, or the US-Colombia FTA. Similar to these agreements, the text includes provisions to criminalize the demand and supply of bribery in “matters affecting international trade and investment.” For example, it requests parties to the agreement to adopt legislation that prohibits the solicitation of bribes, bribery of a domestic or foreign official, and aiding or abetting in bribery. In addition, it requires that parties adopt appropriate anti-bribery penalty mechanisms.
Yet the suggested TI text goes beyond these provisions in numerous ways, especially with regards to implementation. For example, it would require the TTIP Parties, when participating in the implementation review process under the OECD Anti-Bribery Convention and UN Contention Against Corruption (UNCAC), to provide a mechanism for consultation with the civil society and private sectors. In addition, the proposed chapter specifies penalties the Parties should adopt to discourage foreign officials from engaging in corrupt behavior. It also suggests requiring domestic public officials to make declarations regarding relevant financial activities, and suggests the inclusion of a provision requiring enforcement of anti-bribery laws “through a sustained or recurring course of action or inaction.”
These suggested provisions also go beyond requirements the EU and US have made under the OECD Convention. For example, the suggested text includes measures that criminalize offering bribes to domestic public officials. In addition, it requires imposing criminal penalties on domestic public officials who intentionally solicit or accept bribes. In addition, the proposed TTIP revisions would require parties to adopt measures regarding implementation of OECD Convention obligations that go beyond the review system required by the OECD Convention itself. On the other hand, the scope of the provisions is more limited than the OECD provisions, as it applies only to “matters affecting international trade or investment.”
It would be desirable for the EU and the US to adopt TI’s recommendations and use the TTIP as a platform to advance even stronger anticorruption commitments. The TTIP would be biggest trade deal in history. As such, and as highlighted by TI, any measures taken that would effectively combat corruption will deeply impact the business transactions between these major economic players. In addition, it is generally easier to negotiate additional commitments bilaterally than multilaterally, and both the EU and the US are already committed to enhance anticorruption legislation and enforcement. Moreover, the TTIP is a lot more than a trade and investment agreement. While reducing tariffs and quotas is part of it, the main focus is on reducing transaction barriers for business through regulatory harmonization between the EU and the US. As corruption is often mentioned as a main barrier in business, the TTIP provides a unique opportunity for the EU and US to commit to additional anti-corruption commitments.
Including anticorruption provisions in the TTIP will also lead to increased pressure to implement these provisions. In contrast to commitments made at a multilateral level, like the OECD Convention and UNCAC, the EU and the US will be able to hold each other accountable. This generates additional diplomatic and political pressure, incentivizing countries to take the anti-corruption commitments more seriously. In addition, depending on the specific provisions Dispute Settlement provisions, the pressure of potential sanctions for non-compliance with the provisions could potentially add to this pressure.
Finally, as suggested by TI, stronger anticorruption provisions in the TTIP could also raise the bar for anti-corruption provisions in other FTAs, thus increasing the stakes of engaging in corrupt acts across the world. Thus, the EU and the US should seriously consider including TI’s suggested anticorruption measures in the next negotiating round.